Most Canadians want to feel that the police only arrest people who they think have done a crime.
Section 9 of the Canadian Charter of Rights and Freedoms states that all citizens, residents, and new arrivals have the right not to be detained or jailed without good reason. This means police officers need to have reasonable grounds to think that a person has done something wrong or is about to do something wrong before they can make an arrest.
Unfortunately, wrongful arrests in Canada are a real problem. The recent case of Mamadi III Fara Camara shows that police do not always check carefully before arresting people. The Ontario Human Rights group has also found that racial profiling is still a serious issue in Canadian policing.
This means that Canadians should know about the possibility of a wrongful arrest. They must also be ready to defend their civil rights if it happens to them.
What is Unlawful Arrest?
The best definition of an unlawful arrest is when a person is held against their will. This happens intentionally and fully, without a good reason.
The main idea here is “lawful justification.” If the police stop someone who is actually innocent, but they had good reasons to think the person was linked to a crime or was going to commit one, this is not an unlawful arrest. It is a lawful arrest that ended with a not-guilty outcome.
An unlawful arrest in Canada happens when police do not have a good reason, or when they do not follow the right steps. Section 10 of the Charter of Rights and Freedoms says that anyone who is arrested has the right to:
- Learn quickly why they were arrested.
- Get a lawyer right away and be told about that right.
- Have a judge or court review their detention. If it is not right, they should be set free.
The police cannot just arrest someone based on a feeling. A judge or court decides if there is a good reason to keep the person in custody. Within 24 hours of the charges being made, the accused must have a bail hearing. They have the right to have a Toronto bail lawyer at the hearing to speak for them.
If these steps are not followed, an illegal arrest has happened.
Credit: Bill Oxford Via Unsplash
How Does an Unlawful Arrest Happen?
Given that the police know all citizens and residents of Canada have this right, how do bad arrests happen?
Usually, a wrongful arrest is about whether the police had good reasons to think that a person did or would do something illegal.
Most unlawful arrests happen without a warrant. Before we discuss what makes an arrest unlawful, we need to explain how Canadian warrants work.
Under Canadian law, there are two main types of arrest. These are arrest with a warrant and arrest without a warrant. Here they are explained:
- Arrest with a Warrant: A judge gives warrants. They let officers arrest someone. There are two types of warrants: – Bench: A bench warrant is given when someone charged with a crime does not come to court when they should.
- First Instance: A first instance warrant is given when the police charge someone but can’t find them.
- Arrest without a Warrant: Police can arrest without a warrant when they see someone breaking the law, or if they have good reasons to think someone will break the law, or if they see someone committing a crime, or if they think that person has a warrant out.
In the case of Mamadi Ill Fara Camara mentioned above, the illegal arrest took place after he called the police to report a crime. After giving a statement and leaving the area, he was arrested. His home was searched, and he was held for six days. No warrant was given for his arrest, but the police thought he might be guilty of the crime he had reported.
In Mr. Camara’s case, the charges were dropped because of video evidence. His lawyer said that the police did not have a good reason to think he committed a crime. This meant Mr. Camara was a victim of an improper arrest.
It is important to know that Mr. Camara was on a student visa when he was arrested. According to Canadian law, this is not relevant. Students, residents, and citizens all have protection under the Charter.
The same question comes up when police arrest someone because they think that person might have a warrant. Officers can only lawfully arrest someone if they have good reason to suspect there is a warrant for them. If not, the arrest is illegal.
What Should You Do If You Are the Victim of an Illegal Arrest?
The first thing anyone in Toronto who gets arrested should do is look for a good criminal lawyer in Toronto. This lawyer can help them at their bail hearing. The police must let you have legal help. If you feel you were arrested without good reason, your lawyer can help you understand your choices.
Because an illegal arrest in Canada is about human rights, a skilled criminal lawyer in Toronto who knows human rights cases will be the best choice to help you build a strong defense. This can help you get released and have the charges dropped.
After a wrong arrest in Canada, you can sue the police officer, department, or anyone else involved. Bela Kosoian did this after her wrong arrest in Montreal in 2009. She got $20,000 in damages in 2019. These lawsuits are not criminal cases. Your main job should be to clear your name with the help of a Toronto criminal lawyer.
Canadian law gives us rights and freedoms. If we want to use those freedoms, we might have to fight for them. If you need a criminal defense lawyer, contact Jeff Reisman Law. They will help you stand up against injustice.